APPEALED FROM: AAD Nominees Pty Ltd v Kingborough Council

[2011] TASRMPAT 6

Environment and Planning - Environmental planning - Planning schemes and instruments - Tasmania - Other matters - Constructions of Kingborough Planning Scheme 2000 - Whether reference to all relevant provisions of the scheme includes desired future character statements.

Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450; Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, applied.

Von Witt v Hobart City Council (1995) 86 LGERA 134, referred to.

Judgment Number: [2011] TASSC 16

& PLANNING APPEAL TRIBUNAL, KINGBOROUGH COUNCIL,

PETER BEHRAKIS, VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS

1 The appellant, AAD Nominees Pty Ltd, applied to the second respondent, the Kingborough Council, for a planning permit for a large retail commercial development on Channel Highway, Kingston, very near the Australian Antarctic Division Headquarters. The council considered the application under the Land Use Planning and Approvals Act 1993 and its Kingborough Planning Scheme 2000. A decision was made to refuse the application for various reasons.

2 An appeal was brought by the appellant to the first respondent, the Resource Management and Planning Appeal Tribunal. Parties joined to the appeal were the third respondents, the members of the Behrakis family, and the fourth respondent, John Hayes. The joined parties opposed the grant of a permit, broadly supported the council's case, and took an active part in that appeal. The tribunal rejected the appeal and affirmed the decision of the council.

3 This appeal was brought from the tribunal's decision (AAD Nominees Pty Ltd v Kingborough Council [2011] TASRMPAT 6). The parties who participated at the hearing were the appellant and the third respondents, the Behrakis family members. A notice submitting to any order made by the Court was filed by the council. Mr Hayes attended and announced that he would also submit to any order of the Court and he did not participate at the hearing. Counsel said that the tribunal had also submitted, although there is no record on the Court's file. The tribunal played no part at the hearing.

The tribunal's principal reason for affirming the council's decision to refuse the application

4 The land in question is in the Business and Civic Zone under the Kingborough Planning Scheme 2000. Part 6 of the Scheme concerns the Business and Civic Zone. The Part is divided into further parts 6.1 to 6.5, which deal respectively with objectives of the zone, desired future character statements and strategies, table of use classes, standards for use or development in the zone, and schedules to apply in the zone.

5 In cl 6.2.1, the Scheme creates certain areas and precincts within the Business and Civic Zone. For each of those areas and precincts it makes desired future character statements and prescribes strategies that accompany them.

6 Thus, cl 6.2.1(m) creates the Australian Antarctic Division Headquarters Precinct. The tribunal found that the subject land is within the Australian Antarctic Division Headquarters Precinct. The finding is not attacked by the appeal. Clause 6.2.1(m) provides a desired future character statement for the precinct in the following terms: "DFCS1: The Australian Antarctic Division Headquarters and surrounds are to be developed as a science/technical park precinct for scientific and or other research and associated complementary purposes." There is no need to detail the strategies that accompany that statement.

7 The tribunal found that the large retail commercial development proposed by the appellant was not at all in the nature of a science/technical park. It added: "There is nothing about it, even on the most generous view of the proposal, which might be properly described as a scientific or 'other research and complementary purpose'." Those findings are not challenged by the appeal.

8 What is challenged is the conclusion of the tribunal that was based on those findings:

"Accordingly, the Tribunal's view is that the proposal, being distinctly and markedly contrary to the desired future character statement set out for the Australian Antarctic Division Precinct in cl 6.2.1(m), must be refused pursuant to cl 3.1.5 and 3.1.6(a)(ii) of the Scheme."

9 Common grounds are that the tribunal had a discretion whether or not to grant a permit and that it was not obliged, as a matter of law, to reject the application. It is not part of the appellant's argument that by holding that the proposal "must be refused", the tribunal improperly constrained its powers as if it had no discretion. The appeal was argued having regard only to the question whether the tribunal, when exercising its discretion, should have had regard to the desired future character statement for the precinct at all. The appellant's case is that it should not have done so. It maintains that the desired future character statement was an irrelevant consideration and that having regard to the tribunal's decisions concerning considerations that were relevant, it should have concluded that the application had to be granted.

10 The third respondents' case is that the tribunal properly had regard to the desired future character statement for the precinct when it exercised its discretion and confirmed the decision of the council to refuse the application.

11 The tribunal noted that the Scheme is difficult to construe and apply. It certainly is. The tribunal also observed that most of the areas of dispute that occupied the resources of the parties and the tribunal were directly attributable to the complexity, and at times impenetrability, of the Scheme. Once again I agree and sympathise with those who have to deal with it.

12 The Scheme divides its area of operation into six zones, one of which is the Business and Civic Zone. The Scheme divides activities into seven use classes. The use proposed by the appellant for the land is within the Business and Civic Use Class. The proposal includes the development of a supermarket, a discount department store, speciality shops, a take-away fast food restaurant, a fitness centre, and a petrol station, with associated car parking and signage.

13 A clause in the scheme that was discussed in argument is cl 3.1.5 which provides:

"3.1.5 If a use or development falls within a Use Class that can occur within a zone and which is not prohibited or exempt, an application for use or development must also show that it can perform in relation to the Scheme standards and applicable desired future character statements and strategies."

14 Having made an observation about the incorrect use of the verb "perform" in the clause, the tribunal concluded that it required all applications for discretionary permits under the Land Use Planning and Approvals Act, s57, to demonstrate compliance with the Scheme's standards and applicable desired future character statements and strategies. I have found it unnecessary to decide whether that conclusion was too broad. I confine my consideration to whether it was correct so far as concerns the appellant's proposal.

15 The reference to the Scheme's standards is to the standards identified in cls 3.2.1 and 3.2.2. The reference to desired future character statements and strategies is a complex one. The Scheme separately provides for such statements and strategies for each of the six zones, although in the Business and Civic Zone the statement of them is not a general one for all of the zone. Instead, there are in turn separate provisions for such statements and strategies for parts of particulars areas and for precincts that are within that zone, for example the area referred to as Kingston and the Australian Antarctic Division Headquarters Precinct. In other words, the desired future character statements and strategies differ for each area and precinct that is within the Business and Civic Zone. In addition, Schedule 14 of the Scheme contains other statements of desired future character statements (but not strategies) for particular areas within the municipality which are not described by reference to zones.

16 By cl 3.1.6, within each zone each use class is designated as permitted (which means that an application for it must be approved with or without conditions), discretionary (which means that an application for it may be approved with or without conditions, or it may be refused), or prohibited (which means that an application for it must be refused). An application for a use or development that is permitted is to be assessed under the Land Use Planning and Approvals Act, s58. One that is discretionary is subject to s57.

17 In the Business and Civic Zone, the only prohibited use class is Primary Industries. Other use classes fall within the permitted category or the discretionary category. Which of those categories apply depends on whether all relevant Acceptable Solutions have been met. That is explained by cl 3.1.6:

"3.1.6 Within each zone, each Use Class is designated as either:

(i) Use or development which meets all relevant Acceptable Solutions for the specified zone and schedules is to be assessed in accordance with S58 of the Act and will be taken to be in compliance with the zone objectives, desired future character statements and accompanying strategies and must be approved with or without conditions.

(ii) Use or development which does not meet all Acceptable Solutions for the specified zone and schedules is to be assessed in accordance with S57 of the Act and will be assessed to determine compliance with the zone objectives, desired future character statements and accompanying strategies. Council may approve with or without conditions or refuse an application subject to S57 of the Act.

Use or development that is deemed to be not in accordance with the objectives of the zone, desired future character statements and accompanying strategies and therefore must be refused."

18 Because of the reference to "all relevant Acceptable Solutions" in subpar(a)(i), the expression "all Acceptable Solutions" in subpar(a)(ii) should also be read as if it referred to "all relevant Acceptable Solutions". Not to do so would result in an irreconcilable conflict between the two provisions.

19 The term "Acceptable Solutions" is a misnomer. What are designated by it are standards with which proposed uses and developments should conform, subject to exceptions. In fact, Acceptable Solutions and Alternative Solutions are referred to collectively by the Scheme as Scheme Standards. It would have been made easier for readers if they had simply been referred to as acceptable standards and alternative standards, and not as solutions. What those standards are in a particular case depends on things that include the zone, area, precinct and use class relevant to the particular proposal.

20 The tribunal pointed out that when considering this part of the Scheme, although a use or development is permitted and must be approved under cl 3.1.6(a)(i) if it satisfies "all relevant Acceptable Solutions", the Scheme allows for many instances in which there is no provision of an Acceptable Solution at all. That may be for a variety of reasons, which, once again, may depend on the zone, area, precinct and use class. For some other cases the Scheme purports to prescribe an Acceptable Solution which merely states that the application must be considered under the Alternative Solutions.

21 That Acceptable Solutions and Alternative Solutions are standards is also made clear by cls 3.2.1 and 3.2.2:

"3.2.1 Scheme standards are derived from the objectives identified in the Scheme and are the means by which the desired use or development outcomes are to be achieved. These come in the form of zone standards and schedule standards.

Those matters set out in a zone or schedule which are objective (generally measurable) criteria designated as an acceptable means of meeting the corresponding principle. Use or development that complies with all relevant Acceptable Solutions must be approved with or without conditions.

(b) Alternative Solution (Requires Justification)

Those matters set out in a zone or schedule which are generally subjective to assess performance against the corresponding principle. Use or development that applies Alternative Solutions may be approved or refused by Council."

22 How compliance or non-compliance with an Acceptable Solution or an Alternative Solution may affect the outcome of an application for a permit, is explained further by cl 3.2.3:

"3.2.3 Application compliance with the scheme standards is to be determined as follows:

(a) Where an Acceptable Solution is not provided for in any relevant zone or schedule provision, all use or development must comply with the Alternative Solution.

(b) Where an Alternative Solution is not provided for in any relevant zone or schedule provision, all use or development must comply with the Acceptable Solution.

(c) Where a use or development does not comply with either a relevant Acceptable Solution (if any) or the corresponding Alternative Solution (if any), the use or development is prohibited and any permit application must be refused."

23 No issue is taken by the parties with the tribunal's findings concerning the Acceptable Solutions relevant to the application.

24 Part 6.4 of the Scheme contains the standards (that is, the Acceptable Solutions and their Alternative Solutions) for use or development in the Business and Civic Zone. Below are those which the tribunal considered to be relevant. I have omitted many it considered to be irrelevant. I have added the Acceptable Solution and the Alternative Solution at 6.4.1.2 because they assist the determination of the appeal.

To ensure that all permissible use or development is compatible with the

6.4.1.1 Use or Development in the Business and Civic Use Class: All applications for use or development must meet all relevant Alternative Solutions.

6.4.1.1: Council may approve an application for use or development not meeting the Acceptable Solution provided all relevant provisions of the Scheme are met.

6.4.1.2 Use or Development in the Residential Use Class: All applications for use or development must be considered under the Alternative Solutions.

6.4.1.2: Council may approve an application for use or development not meeting the Acceptable Solution where it can be demonstrated that:

(a) the application will not prejudice the zone objectives or applicable desired future character statements; and

(b) the provisions contained in Part 6 of the Scheme are addressed with respect to:

(c) the provisions contained in Part 5 of the Scheme are addressed with respect to:

(d) there is adequate private open space in the form of balconies, decks or other spaces for the projected requirements of the dwelling occupants, as well as to provide space for service functions, being in the case of new buildings proposed for construction after 1 July 2004 an area of no less than 20 sq m.

To ensure that the movement of commercial vehicles delivering goods to business, commercial or civic premises do not occur in a manner as to endanger the public.

6.4.3.1 Loading/Unloading: The following standards are to be met:

(a) On road: in accordance with the Guide to Traffic Engineering Practice, Part 11 NAASRA (1888);

(b) Off road: in accordance with AS 2890.2 (1989)

6.4.3.1: Where delivery of goods is required arrangements for parking, manoeuvring, loading and unloading of delivery vehicles is not to interfere with pedestrian or vehicle movements on roads, nor be completely reliant on kerb side parking.

To ensure development enhances the streetscape and provides for high quality civic spaces.

6.4.4.5 Carparking Location: Carparking will

(a) not be located forward of the building line; and

(b) be located a minimum of 1.5m from side and rear boundaries to allow for screen planting and noise attenuation except where the property abuts a lot within the Residential Zone in which case the minimum separation is 5m.

6.4.4.5: Carparking must be designed and located to ensure that it does not adversely effect (sic) the streetscape or visual or acoustic privacy of adjacent residential sites. In determining whether to approve carparking forward of the building line Council will require a landscaping plan which documents and demonstrates the specific design solutions proposed for the site.

25 Clause 6.5.1 of the Scheme provides that in the Business and Civic Zone schedules 1 - 12 and schedules 14 and 15 of the Scheme "must be adhered to with respect to use or development". Those schedules contain a great number of Acceptable Solutions and Alternative Solutions, as well as desired future character statements and strategies.

26 A clause that is important to the resolution of the appeal is cl 3.5.1:

"3.5.1 Council must consider an application for a proposed use or development under the relevant provisions of the Scheme namely:

•

the objectives of the zone, Desired Future Character Statements and accompanying Strategies;

•

the applicable planning standards and principles;

•

the provisions of Part 2 of the Scheme;

•

any relevant requirements contained in the Act, and

•

any other applicable legislation."

27 The appellant's counsel advanced four arguments that are accepted for the purposes of the appeal.

28 Firstly, by virtue of cl 6.3.1, a use or development falling within the Business and Civic Class is a permissible use in the Business and Civic Zone.

29 Secondly, by virtue of cl 3.1.6(a)(i), use or development which meets all relevant acceptable solutions for the specified zone and schedules is to be assessed in accordance with s58 and is to be taken to be in compliance with the zone objectives, desired future character statements and accompanying strategies. It must be approved with or without conditions.

30 Thirdly, by virtue of cl 3.1.6(a)(ii), if the use or development proposed by the appellant did not meet all relevant acceptable solutions, the proposal was to be assessed under s57 and the council had a discretion whether to approve it, with or without conditions, or to refuse it.

31 Fourthly, an issue between the parties is whether that discretion is a general one or whether its exercise is limited to a consideration of the extent to which the use or development does not comply with an acceptable solution or its alternative solution. The appellant argues for the second of those possibilities and I will accept, without deciding, that the argument is correct.

32 The tribunal found that the application did not comply with relevant acceptable solutions that concerned:

● car parking spaces forward of the building line (cl 6.4.4.5(a));

•

car parking spaces behind the building line (on an alternative interpretation under Sch3, cl 3.2.6.4);

•

the location of a major traffic generating development (Sch3, cl 3.2.7.1);

•

the environmental impact caused by traffic and vehicle movements (Sch3, cl 3.2.7.1.(c));

•

the impact on existing infrastructure investments (Sch3, cl 3.2.7.1(d));

•

removal of vegetation near a waterway (Sch5, cl 5.2.2.1); and

•

the clearance of high priority vegetation (Sch10, cl 10.2.1.1).

33 In each of those cases, the tribunal formed the view that the corresponding Alternative Solution was met. I will give an example of what it decided.

34 Acceptable Solution 6.4.4.5(a) required that car parking was not to be located forward of the building line. The tribunal found that one car parking space would be forward of the building line and for that reason, the Acceptable Solution had not been met. The tribunal then had recourse to the corresponding Alternative Solution, which required that car parking be designed and located to ensure that it did not adversely affect the streetscape or acoustic privacy of adjacent residential sites. Based on the evidence, the tribunal found that the Alternative Solution was satisfied.

35 It was submitted by the appellant's counsel that the Scheme should not be regarded as requiring a consideration of all relevant desired future character statements merely because of a failure to comply with an acceptable solution, perhaps a very minor failure. He submitted that all that was required was a consideration of whether there was satisfaction of the corresponding Alternative Solution. For the purposes of the appeal, I will accept that argument without deciding whether it is correct. However, it was not conceded by counsel for the third respondents.

36 Counsel for the appellant compared the provisions of the Alternative Solution in cl 6.4.1.1 with the Alternative Solution in cl 6.4.1.2. He pointed out that whereas the one at cl 6.4.1.2 requires demonstration that the application will not prejudice applicable desired future character statements, the one in cl 6.4.1.1 does not expressly require that. Counsel submitted that for that reason, the Alternative Solution in cl 6.4.1.1 does not require consideration of desired future character statements at all.

37 Counsel further submitted that it followed that in the Business and Civic Zone an application for approval of a use or development falling within the Business and Civic Use Class, which counsel labelled as a primary use in that zone, does not require consideration of the desired future character statements. On the other hand, he submitted, applications concerning uses that fall within the other use classes, which he referred to as secondary uses, such as the residential use class, do require consideration of the desired future character statements because of the express requirement in Alternative Solution 6.4.1.2(a).

38 Counsel mentioned many other similar comparisons that can be made between alternative solutions in the Scheme.

39 In a written outline of his submissions, the appellant's counsel summarised his argument that was based on that comparison, in the following way: "Thus when one examines the structure of the planning scheme as a whole it is clear that consideration of the zone objectives and statements of desired future character is only relevant if the proposed use/development is a secondary, not primary, use in the zone."

40 The tribunal referred to the Acceptable Solution and the Alternative Solution at cl 6.4.1.1. Although it did not reason that they were determinative of the appeal, I find that to be the case.

41 The Alternative Solution in cl 6.4.1.1 requires an application of the present kind to be assessed against what is contained therein. In that regard it requires a determination of whether "all relevant provisions of the Scheme are met". Like the other Acceptable Solutions and Alternative Solutions considered by the tribunal, it could not be ignored.

42 Similarly, the general provision of cl 3.5.1, requires the council to consider "the relevant provisions of the Scheme" when considering applications for a proposed use or development. It explains what are to be treated as the relevant provisions of the Scheme by identifying them. They include the desired future character statements.

43 It is a general principle of interpretation of legislative instruments such as a planning scheme, that a document should be construed as far as possible so as to give the same meaning to the same words wherever they occur. Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452; Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 at 618. I apply that principle and hold that in cl 6.4.1.1 the reference to all relevant provisions of the Scheme includes the desired future character statements. Such an interpretation is consistent with cl 3.1.5 and cl 3.1.6.

44 Counsel for the appellant relied on the statement of Wright J in Von Witt v Hobart City Council (1995) 86 LGERA 134 at 139, that a scheme must be read as a whole and its generalised statements of principles, objectives and desired future character statements cannot be relied upon to the exclusion of subsequent specific provisions, except where it is provided for by the scheme itself. My interpretation of the Alternative Solution in cl 6.4.1.1 does not offend the principle. It is a specific provision of the Scheme that must be applied.

45 For these reasons, the tribunal did not err when it rejected the appeal and affirmed the decision of the council because there was nothing about the proposal that might properly be described as a scientific or other research and complimentary purpose as required by the desired future character statement for the Australian Antarctic Division Headquarters Precinct.